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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1730 September Term, 1998

LAUDIE J. BAER v. MARVIN L. BAER

Harrell,* Hollander, Adkins, JJ.

Opinion by Adkins, J. Concurring Opinion by Harrell, J. *Harrell, J., now a member of the Court of Appeals, participated in the conference and decision of this case while a member of this Court; he participated in the adoption of this opinion as a member of this Court by special designation.

Filed: October 7, 1999

On August 8, 1994, Marvin L. Baer, appellee, filed a complaint for an absolute divorce from Laudie J. Baer, appellant, in the Circuit Court for Anne Arundel County, based upon a voluntary separation. On January 25, 1996, the court approved a marital

separation agreement entered into by the parties, calling for, inter alia, modifiable rehabilitative alimony. Mrs. Baer was

granted an absolute divorce on April 1, 1996, which incorporated the previous agreement. Mrs. Baer subsequently filed a series of

motions, including a motion to modify the aforementioned alimony. After a hearing on the motions, the trial court denied appellant's request for modification of alimony. This appeal was timely filed.

Mrs. Baer asks us to consider whether the trial court abused its discretion in denying a modification of alimony: 1) on the basis that she would not undergo treatment with the recommended type of psychotropic medications for her depression that prevented her from full-time employment; and 2) by not considering her unexpected surgeries for colon cancer and the associated incapacity and recovery period.

FACTS AND LEGAL PROCEEDINGS The parties were married in 1983, when Mrs. Baer was 43 years of age and Mr. Baer was 49 years of age. a result of their marriage. No children were born as

In July 1993, the parties voluntarily On

separated, and on August 8, 1994, Mr. Baer filed for a divorce. November 13, 1995, at a scheduled hearing date, the

parties

announced that they had reached an agreement covering property and support issues, which they read into the record. At that time,

they agreed that neither party would proceed to obtain a divorce until after January 1, 1996. On January 23, 1996, the trial court signed an order

incorporating all of the terms of the parties' agreement according to the terms announced at the November hearing. included provisions for payment of "modifiable This order

rehabilitative The

alimony" to Mrs. Baer for five years from January 1, 1996.

alimony was to be paid at a rate to be determined by a formula, not to exceed $4,000 per month, until the parties' marital home was sold. The formula called for payment of the two mortgages on the

parties' marital home, the utilities, and $430 per month in cash to Mrs. Baer. After the house was sold, Mr. Baer would pay alimony of

$2,500 per month through 1998, and thereafter at the rate of $1,500 per month until the end of the year 2000. Mrs. Baer also received

a $36,777 distribution from Mr. Baer's University of Maryland pension, and a small portion of his military pension, to be paid monthly. Mr. Baer agreed to pay Mrs. Baer's health insurance

through the end of the year 2000, assumed marital debts of $48,000, and paid $4,500 in counsel fees for Mrs. Baer. Mrs. Baer opposed the entry of the January 1996 order,

asserting in a January 25, 1996 letter to the court that the November 1996 agreement was not equitable, and that she did not "understand and appreciate what she was agreeing to." 2 The court

nevertheless signed the order incorporating the agreed terms and included a handwritten note that stated: "Since the order comports with the transcript, it has been signed." A judgment for absolute

divorce was entered on April 1, 1996, incorporating the terms of the January 23 order. No appeal was taken from this judgment.

Beginning in March 1997, after the marital home had been sold,1 Mrs. Baer filed a series of motions regarding the alimony called for in the January 1996 order, including requests to: 1) increase and extend the rehabilitative alimony because of her ongoing recovery from colon cancer; and 2) to award indefinite alimony because even after recovery from the surgeries, she could not "attain a standard of living which is not unconscionably disparate with that of" Mr. Baer. Mrs. Baer's motions were heard

on June 10 and 11, 1998, in the circuit court.

Factual Background Mr. Baer is a board certified prosthodontist. After retiring

from the dental corps of the United States Air Force, he served as an Associate Professor at the University of Maryland Dental School and maintained a part-time dental practice. At the time of the

Although the parties agreed in the 1996 agreement that the house would be sold by April 1, 1996, it was not sold by such date. The house was sold at a mortgage foreclosure proceeding on November 22, 1996, following Mr. Baer's July 23, 1996 declaration of bankruptcy, and apparently the parties received no net proceeds from the sale of the house. After the foreclosure, Mrs. Baer also filed bankruptcy. 3

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hearing in this case, Mr. Baer was earning a gross annual salary of $81,628 from the University, plus $55,668 in retirement pay from the Air Force. For the year 1997, he also earned an additional After

$20,368 from his part-time "faculty practice" of dentistry.

1997, income from his part-time dental practice decreased because he cut back his working hours. Mrs. Baer holds a doctorate in research chemistry, and when the parties were married, she was employed as a research chemist at the Naval Research Laboratory. She was terminated from that Since

position in 1983, for failure to complete an assignment.

then, she was employed, sporadically, as a ski instructor, a yoga instructor, and a lifeguard. At the time of the hearing, she was

working one or two days as a massage therapist at the University of Maryland Health Center, earning $34 per hour. upon the number of patients she treated daily. Her pay depended Her monthly income

in the spring of 1998 was estimated to be $170 from her employment, $126 from Mr. Baer's Air Force retirement, and $1,500 in alimony. In February 1995, Mrs. Baer was diagnosed with colon cancer. Although several of the physicians she consulted regarding her cancer recommended surgery, she declined surgery, believing that she could overcome the cancer with homeopathic medications and proper diet. In July 1997, her cancer caused her colon to rupture,

and she underwent emergency surgery to remove the cancer and part of her colon. As a result of that episode, she was unable to work In October and November

from July 1997 through September 1997. 4

1997, she worked as a message therapist, but only one day a week, that being all she "could handle." In December 1997, she required additional surgery, a reverse colostomy, and as a result, was unable to work for two months. In

March 1998, she resumed her position as a message therapist on the two days per week schedule she maintained at the time of the hearing. She testified that in June 1997, her recent surgery was

still affecting her ability to work, as she was still in the recovery process. She also said that the surgery caused adhesions

to form in her intestines and nerve damage to her pelvic area, and she was undergoing acupuncture treatments for the latter condition. Mrs. Baer has a history of mental health problems, dating from her teenage years. She attempted suicide once as a teenager and As an adult, she

twice while an adult attending graduate school.

was hospitalized three times for depression, and was under the care of a psychiatrist for various periods during her life. During the

five years preceding the hearing below, she was not under a psychiatrist's care. She began consultations with a psychologist, Dr. Thomas Muha, on January 8, 1997. Dr. Muha opined that she suffers from "severe He described her

recurring depression with psychotic features."

psychotic features as an episodic difficulty "being able to assess the reality of situations that she is facing and that significantly impairs her judgment," and gave as an example her refusal to undergo surgery to remove the cancer in her colon despite the 5

recommendation of multiple doctors. depression causes her to have a

He also testified that her low energy level, and "her

tolerance for stress is absolutely minimal."

Dr. Muha opined that

with appellant's stress level and chronic fatigue, she was limited in the extent that she could work, and "one or two days [per week] would probably be the optimal level at which she can function." Dr. Muha also opined that the prognosis for recovery is "not good," and that "there's an 80 percent probability that she's going to continue to have severe problems." Dr. Muha indicated that there are medications that would be appropriate for the depression suffered by Mrs. Baer, but declined to express an opinion regarding the identity of those medications, saying: "I am not a medical doctor, so I am not qualified to answer that . . . ." recommended, He reported, however, that "I certainly suggested, referred, and encouraged her to speak to her

physicians about that.

She did, in fact, at my urging, do that."

It was his opinion that even if she used additional medications, she would be unlikely to stay on the proper dosage, and so would experience problems. Dr. Stephen Siebert, a psychiatrist, testified for Mr. Baer regarding Mrs. Baer's mental health. He reviewed her medical

history, and had a two-hour meeting with her to determine her current state of mind and current level of functioning. His

conclusion was that, although she exhibited no current symptoms during their meeting, her records presented evidence of a bipolar 6

disorder.

He explained bipolar disorder.

He differentiated his

diagnosis from that of Dr. Muha by explaining: If a person has a manic episode at any time in their life, it would be most appropriately ---- result in a diagnosis of a bipolar disorder, not a recurrent depressive disorder as Dr. Muha has offered . . . this condition is a very readily treatable condition . . . . This is one of the few conditions . . . in all of psychiatry where we can actually prevent the symptoms of the illness. We can prevent hospitalizations. We can prevent the psychosis. We can prevent the depressive episodes. We can prevent manic episodes. There are treatments that will maintain mood stability, allow a person to cope with the normal stresses of life, and allow people to function in a normal way. Dr. Siebert opined that a relatively new class of medications referred to as "mood stabilizers" would benefit Mrs. Baer,2 and indicated that her records reflected that she had not taken any of these medicines, with the exception of lithium, in the past. He

recommended that these be combined with antidepressant medications, and that she should be monitored regularly by a psychiatrist. He

explained that most of the medicines that he recommended were only recently introduced, and were not available five years ago, when she was last treated by a psychiatrist. He further opined that the

fatigue that is caused by her depression "could be regulated or

He specifically recommended the following mood stabilizers: tegretol, depakote, gabapentin, and lamotrigine. He indicated that lithium was a mood stabilizer. He also recommended risperdal or ayprexa as safe medicines for someone who suffers from delusions or paranoia. 7

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could [be] improved with appropriate medications." Dr. Siebert expressed his belief that "she has denied herself from [sic] competent and reasonable medical treatment that is readily available for in this energy area and in for terms mood of treatment for He

depression,

low

stabilization."

acknowledged that she presently takes zoloft, an antidepressant medication of the type that he recommended, but that her dosage was not sufficiently high to help her. Further, he opined that she

should not be taking an antidepressant without simultaneously taking a mood stabilizer, as the antidepressant could cause her further problems. Mrs. Baer testified that she was unwilling to take mood stabilizers, such as lithium, that Dr. Siebert recommended. explained: I have had a number of experiences - two, in which these medical professionals have prescribed that type of medication for me, and they . . . weren't very careful about what they did, and it caused me serious harm. And I feel that my life is my responsibility and I'll make the decisions about what medications I should take. And right now I am having a lot of success with the homeopathic medications that [her homeopathic doctor] recommends. And there are no side effects and I am very comfortable with that. When asked about her specific negative experiences with She

psychotropic medications, Mrs. Baer described an occurrence in 1993, when a psychiatrist prescribed a medication, unspecified,

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that

"essentially shut down my perspiration mechanism."

She

explained that she was working as a lifeguard when she took this medication, that her doctor had not advised her that she should avoid exposure to the sun while taking it, and consequently, she became very sick. She also indicated that another doctor had

prescribed lithium for her, but had given her too high a dosage and had not properly monitored her with blood tests.

The Court's Ruling The trial court, in its written opinion, described appellant's position to be that "her health has not improved as it was originally thought it would, that the income gap is disparate, and that she needs the money." The court agreed that Mrs. Baer's

"continuation of her medical condition of major depression would qualify for an extension of alimony" under our decision in Brashier v. Brashier, 80 Md. App. 93 (1989). It further stated:

We agree with Dr. Muha, her psychologist, that she has a severe depression, however exactly defined, and in her present state has difficulty enough working ten hours much less forty hours. . . . All of this could be proper grounds for further indefinite alimony. However, there is the problem of treatment. Mrs. Baer does not want to use psychotrophic drugs; she claims bad experiences in the past. Dr. Siebert, [Mr. Baer's] expert psychiatrist, notes there are many new medicine's today which do not have the after effect Mrs. Baer complains of. Since use of such drugs is outside the expertise of Dr. Muha, he declined to comment on this, leaving Dr. Siebert's the only direct 9

testimony on this issue. In addition, there were suggestions that other doctors had recommended medication to Mrs. Baer without success. Mrs. Baer is entitled to refuse any treatment, just as she did with regard to her cancer, although it almost cost her life. It is her body, and it is within her control. However, if she wants to continue her alimony, she is either going to have to use these drugs or have solid evidence that they would harm her. While her depression is one of the reasons she rejects these drugs, we believe she is capable of making a free will decision to use or not use such drugs. Since she has refused to use them to date, despite competent evidence they are necessary and that she has been told that, we must deny her petition for an increase. This does not mean she cannot seek such [medical] relief, and if it fails, seek [an extension of] alimony. She has until the end of the year 2000 to do that. However, on the state of facts as we find them we deny the relief. Appellant filed a motion to alter or amend the order based solely on her physical condition. that in focusing on her In the motion, appellant argued condition, the court

psychological

"overlooked the unforseen [cancer] surgeries."

By order dated

August 13, 1998, the court denied the motion, stating that "it is her refusal to get treatment that has prolonged that part of the case." The court awarded appellant $1,500 in attorneys' fees.

Appellant timely filed this appeal.

DISCUSSION I. Whether Trial Court Could Base Denial of Petition 10

to Increase Alimony on Mrs. Baer's Refusal to Take Psychotropic Medications to Improve her Mental Health and Increase her Ability to Work Appellant's first argument is that the trial court abused its discretion by refusing to modify rehabilitative alimony to

indefinite alimony when it simultaneously found that Mrs. Baer had a debilitating mental health condition, and "mandate that she submit to drug therapies, . . . and only then file again for modification if that therapy actually harms her or fails to resolve the problem." She offers five reasons why this decision was an

error, which we briefly summarize: (1) The record does not support the trial court's conclusion that she is capable of deciding to make the decision to submit to taking psychotropic medications. (2) Without a modification, her income will decrease by 40%, a harsh and inequitable result. (3) The condition imposed by the trial court will at least result in an unjust interim loss of income while she experiments with the medication and awaits trial on a second case, or at worst, will make her seriously ill. (4) She was taking an antidepressant medication at trial, and the court should not have conditioned her alimony on a particular "modality of treatment." (5) "The notion that an individual who suffers from a mental condition that causes or contributes to his or her reluctance to seek treatment for that condition can, on the basis of that reluctance, be refused alimony . . . is patently contrary to reason." Appellee contends that the trial court did not abuse its discretion in denying the request for modification of the alimony agreed to by

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the parties. We agree with appellant that the trial court erred in denying her petition for modification on the grounds of her refusal to take certain psychotropic3 medications. Our reasons are similar, Because

although not identical, to several advanced by appellant.

our decision is influenced by common law principles underlying the doctrine regarding the right to bodily integrity and informed consent, we begin our discussion with a review of this topic.

A. The Right to Bodily Integrity and Informed Consent ---- Forcible Administration of Psychotropic Medications Under our common law "a physician, treating a mentally

competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient." 438-39 (1977). treatment. Sard v. Hardy, 281 Md. 432,

A corollary right is the right to refuse medical These

See Mack v. Mack, 329 Md. 188, 210 (1993).

rights are embodied in the law of "informed consent," and the doctrine recognizing an individual's broader right to bodily

integrity.

See Cruzan v. Missouri Dept. of Health, 497 U.S. 261,

271, 110 S. Ct. 2841, 2847 (1990) (observing that "most courts have

A "`Psychotropic' medication is one that acts upon the mind or psyche." Beeman v. Department of Health & Mental Hygiene, 105 Md. App. 147, 159 n.4 (1995) (citing The New Webster's Medical Dictionary 199 (1988)). 12

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based a right to refuse medical treatment . . . solely on the common-law right to informed consent . . ."); Norwood Hosp. v. Munoz, 564 N.E.2d 1017, 1021 (Mass. 1991) (explaining that the right to bodily integrity has developed through the doctrine of informed consent); In the Matter of Conroy, 486 A.2d 1209, 1222 (N.J. 1985) (stating that "[t]he doctrine of informed consent is a primary means developed in the law to protect [the] personal interest in the integrity of one's body."). A person's right to a resist forcible administration protected of

medications interest.

implicates

constitutionally

liberty

See Cruzan, 497 U.S. at 278, 110 S. Ct. at 2851;

Williams v. Wilzack, 319 Md. 485, 498 (1990) ("The liberty interest of a noninstitutionalized mental patient to refuse treatment with antipsychotic drugs was of such importance that it could be

overcome only by `an overwhelming [s]tate interest.'") (quoting In the Matter of Guardianship of Roe, 421 N.E.2d 40 (Mass. 1981)); Beeman v. Department of Health & Mental Hygiene, 105 Md. App. 147, 158 (1995) (holding that a person has a significant constitutional liberty interest in being free from the arbitrary and capricious administration of psychotropic medicines); see also Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 1036-37 (1990). The Court of Appeals in Williams explained the rationale for the heightened protection afforded a patient against forced

administration of psychotropic medications. 13

In doing so, the Court

quoted

the

Supreme

Court,

which a

articulated

that

"`forcible body

injection

of

medication

into

non-consenting

person's

represents a substantial interference with that person's liberty,' since the purpose of the drugs `is to alter the chemical balance in a patient's brain, leading to changes, intended to be beneficial [to the individual's] cognitive processes." Williams, 319 Md. at

503 (quoting Washington, 494 U.S. at 229, 110 S. Ct. at 1041) (alteration in original). Under the law of informed consent, an adult has the right to refuse treatment, even if the refusal has a detrimental effect, so long as the individual is competent. Appeals explained: The very foundation of the doctrine [of informed consent] is everyone's right to forego treatment or even cure if it entails what for him are intolerable consequences or risks, however warped or perverted his sense of values may be in the eyes of the medical profession, or even of the community, so long as any distortion falls short of what the law regards as incompetency. Individual freedom here is guaranteed only if people are given the right to make choices that would generally be regarded as foolish ones. United States v. Charters, 829 F.2d 479, 495 (4th Cir. 1987). Although courts will respect a competent adult's right to refuse treatment, individuals have been restrained from exercising that right when physical injury to other persons is at risk. Thus, The Fourth Circuit Court of

the State may administer psychotropic medications to inmates who are likely to cause harm to themselves or others, provided that 14

there is a medical finding that "a mental disorder exists which is likely to cause [such] harm," and constitutional due process is met. Williams, 319 Md. at 501 (citing Washington, 494 U.S. at 22023, 110 S. Ct. at 1036-37); see also Guardianship of Roe, 421 N.E.2d at 60 (recognizing a similar rule for noninstitutionalized mentally ill persons). In the present case, we do not address, directly, the issue presented by the cases mentioned above ---- the forced administration of psychotropic medicines. Yet in denying appellant's claim for

modification of alimony solely because she failed or refused to take a certain modality of psychotropic medications, the court has implicated the principles of the right to bodily integrity and informed consent. to apply a more The implications from this body of law cause us critical eye to the evidence and rationale

supporting the trial court's decision.

B. Responsibility for Adverse Consequences of Refusal To Take Medication There are of sometimes a adverse refusal effects, to with to monetary medical

consequences, treatment.

person's

consent

Courts have infrequently been called upon to determine

whether the monetary consequences of a decision should be shared by, or shifted to, another party. We have found three cases which

denied monetary relief to a plaintiff who has refused medical

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treatment, and the refusal had detrimental effects. In Demary v. United States, 982 F. Supp. 1101 (D. S.C. 1997), the Federal District Court held that in determining damages to a plaintiff who survived an airplane accident, a court could consider whether the plaintiff acted reasonably in refusing antidepressant medications to cure his post traumatic stress syndrome. See id. at

1111; see also Franklin v. U.S. Postal Service, 687 F. Supp. 1214, 1218-19 (S.D. Ohio 1988) (plaintiff's discharge from employment was not a violation of the ADA when she exacerbated her handicap by refusing to take psychotropic medication for her schizophrenia, and her refusal caused her to commit criminally violent actions while on the job). In Hart v. City of Jersey City, 706 A.2d 256 (N.J.

Super. Ct. App. Div. 1998), a New Jersey appellate court denied the tort claims of a police officer against the city, reasoning that his "liberty interest in medical self-determination, including the right to refuse unwanted medical care" was not violated when the officer was required to accept alcohol counseling as a condition of his continued employment. Id. at 259. The court pointed out that

the plaintiff, as a police officer, had "authoritative sway and access to arms," and had been exhibiting alarming behavior. 260. Id. at

In considering his right to medical self-determination, it

reasoned that "the patient's rights have often been weighed against the interests of others." Id.

Sometimes, courts have been willing to shift the monetary

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consequences of refusal of treatment when the decision is affected by mental illness, even though the patient is competent. In

Pennsylvania, courts have held that in negligence suits claiming personal injury, a plaintiff is not required to comply with the normal requirement to mitigate his damages by obtaining psychiatric treatment, when his refusal to undergo psychiatric treatment is a manifestation of his emotional injuries. See Botek v. Mine Safety

Appliance Corp., 611 A.2d 1174, 1176-77 (Pa. 1992); see also Browning v. United States, 361 F. Supp. 17, 24 (E.D. Pa. 1973). We have not been made aware, nor have we found, any cases addressing predicated the upon issue a of whether taking an award of alimony can be to

spouse

pschychotropic

medication

enhance the spouse's ability to work. DeLaMatter, 445 N.W.2d 676, 681

But cf. In re DeLaMatter v. Ct. App. 1989) ("when

(Wis.

alcoholic spouse has refused medically recommended treatment and then claims a need for permanent maintenance because of the

alcoholism, such refusal" must be considered by court).

C. Analysis of Expert Testimony and Other Evidence When a trial court conditions a spouse's right to seek a modification in alimony on the spouse's taking psychotropic

medications pursuant to the recommendation of an expert witness, the expert testimony regarding mental illness and treatment must be highly reliable and particularized to the individual whose mental 17

health is at issue.

See Guardianship of Roe, 421 N.E.2d at 58-59

(when evaluating an issue involving psychotropic medication of a mentally ill person, a court "must reach beyond statistical factors and general rules to see `the complexities of the singular

situation'" (quoting Belchertown State Sch. v. Saikewicz, 370 N.E.2d 417, 428 (Mass. 1977))). Under the circumstances of this

case, we find that the expert testimony relied upon by the trial court was not sufficient to support its decision. We explain.

In order to sustain a petition to modify alimony set by a prior judgment, the moving party must demonstrate a change in circumstances justifying modification. See Blaine v. Blaine, 97 In has

Md. App. 689, 710-11 (1993), aff'd, 336 Md. 49 (1994). considering a petition for modification, a trial court

discretion to determine the extent and amount of alimony, see Levin v. Levin, 60 Md. App. 325, 336 (1984), and must consider specific factors in exercising its discretion. See Md. Code (1984, 1999 One of

Repl. Vol.),

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